Citation Nr: 1305965	
Decision Date: 02/21/13    Archive Date: 02/27/13

DOCKET NO.  10-34 328	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUE

Entitlement to an increased rating, in excess of 10 percent, for bilateral plantar fasciitis (also diagnosed as valgus deformity with pes planus).


ATTORNEY FOR THE BOARD

C. Bruce, Counsel


(The issues of service connection for bilateral knee disabilities are the subject of a separate Board decision.)
INTRODUCTION

The Veteran served on active duty from January 1992 to April 1992.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota.

As noted on the first page of this decision, the Veteran currently has an appeal for claims for entitlement to service connection for a right knee disability and a left knee disability.  As the Veteran has different representation for those claims, they are being addressed in a separate decision.

The Veteran initially requested a video conference hearing in a February 2012 statement.  She later withdrew her request in a March 2012 statement.


FINDING OF FACT

The Veteran's bilateral plantar fasciitis (also diagnosed as valgus deformity with pes planus) is manifested by pain, tenderness, lack of endurance and abnormal weight bearing with inward bowing of Achilles alignment on nonweight bearing and loss of arch on weight bearing indicating moderate pes planus.  


CONCLUSION OF LAW

The criteria for an increased rating, in excess of 10 percent, for bilateral plantar fasciitis (also diagnosed as valgus deformity with pes planus) have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5310-5276 (2012).



REASONS AND BASES FOR FINDING AND CONCLUSION

VA's Duties to Notify and Assist

Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of (1) the information and evidence not of record that is necessary to substantiate a claim, (2) which information and evidence VA will obtain, and (3) which information and evidence the claimant is expected to provide.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159 (2012); see also 73 Fed. Reg. 23,353-6 (April 30, 2008) (codified at 38 C.F.R. § 3.159 (May 30, 2008)).  See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).

After careful review of the claims file, the Board finds that the letter dated in December 2008 fully satisfied the duty to notify provisions.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  In this regard, this letter advised the Veteran what information and evidence was needed to substantiate the claims decided herein.  This letter also requested that the Veteran provide enough information for the RO to request records from any sources of information and evidence identified by the Veteran, as well as what information and evidence would be obtained by VA, namely, records like medical records, employment records, and records from other Federal agencies.

The United States Court of Appeals for Veterans Claims (Court) in Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006), held that the VCAA notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  The December 2008 letter provided this notice to the Veteran.

The Board observes that the December 2008 letter was sent to the Veteran prior to the March 2009 rating decision.  The VCAA notice with respect to the elements addressed in this letter was therefore timely.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  In this regard, the notice provided in the December 2008 letter fully complied with the requirements of 38 U.S.C.A. § 5103(a), 38 C.F.R. § 3.159(b) (2012), and Dingess, supra.

Therefore the Board concludes that the requirements of the notice provisions of the VCAA have been met, and there is no outstanding duty to inform the Veteran that any additional information or evidence in needed.

The Board finds that VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claims and providing a VA examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4)(i) (2012).  In this regard, the Veteran's service treatment records, private treatment records and VA treatment records are associated with the claims folder.

VA examinations were obtained in January 2009, May 2010, and July 2011.  38 C.F.R. § 3.159(c)(4).  To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Additionally, an examination for rating purposes should contain sufficient detail and reflect the whole recorded history of a Veteran's disability, reconciling the various reports into a consistent picture.  See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); 38 C.F.R. § 4.2 (2012). The Board finds that the VA examinations, including opinions, obtained in this case are more than adequate, as they are predicated on a full reading of the VA medical records in the Veteran's claims file.  They consider all of the pertinent evidence of record, and the statements of the Veteran, and provide a complete rationale for any opinions stated, relying on and citing to the records reviewed.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met.  38 C.F.R. § 3.159(c) (4) (2012).

Under the circumstances of this case, "the record has been fully developed," and "it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate his claim."  Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).  Therefore, the Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations and the record is ready for appellate review.

Analysis

Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012).  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). 

Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2012).

In accordance with 38 C.F.R. §§ 4.1, 4.2 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the history of the Veteran's service-connected disability.  The Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes.  The Board is of the opinion that this case presents no evidentiary considerations, except as noted below, that would warrant an exposition of the remote clinical history and findings pertaining to the disability at issue.

In considering the severity of a disability, it is essential to trace the medical history of the Veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41 (2012).  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending.  Powell v. West, 13 Vet. App. 31, 34 (1999).

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements.  The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. §§ 4.40, 4.45, see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995).  Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59.  The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement.  38 C.F.R. § 4.45.

Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability.  38 C.F.R. § 4.14 (2012).  However, it is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition.  See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994).

Musculoskeletal disabilities of the foot are rated under Diagnostic Codes 5276 to 5284 (38 C.F.R. § 4.71a) and muscle injuries of the foot are rated under Diagnostic Codes 5310 to 5312 (38 C.F.R. § 4.73).  The Veteran is service-connected disabilities have been evaluated under 38 C.F.R. § 4.71a and 4.73, Diagnostic Codes 5310-5276 for plantar fasciitis and pes planus.  The Board notes that hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen.

Under 38 C.F.R. § 4.71a, Diagnostic Code 5276, pes planus is rated as 10 percent disabling when it is moderate.  Moderate is defined as pes planus evidenced by the weight-bearing line over or medial to the great toe, inward bowing of the tendo Achilles, or pain on manipulation and use of the feet.  A 30 percent rating will be assigned when it is bilateral and severe and a 20 percent rating will be assigned when it is unilateral and severe.  Severe is defined as pes planus evidenced by objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities.  A 50 percent rating will be assigned when it is bilateral and pronounced and a 30 percent rating will be assigned when it is unilateral and pronounced.  Pronounced is defined as pes planus evidenced by marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achilles on manipulation, that is not improved by orthopedic shoes or appliances.  See 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2012).

Under 38 C.F.R. § 4.73, Diagnostic Code 5310, Muscle Group X governs movements of the forefoot and toes and propulsion thrust in walking.  The muscles of Muscle Group X are divided into two groups, the plantar and the dorsal muscles. The muscles of the plantar aspect of the foot consist of (1) Flexor digitorum brevis; (2) abductor hallucis; (3) abductor digiti minimi. (4) quadratus plantae; (5) lumbricales; (6) flexor hallucis brevis; (7) adductor hallucis; (8) flexor digiti minimi brevis; (9) dorsal and plantar interossei.  Other important plantar structures are the Plantar aponeurosis, long plantar and calcaneonavicular ligaments, tendon of posterior tibial, peroneus longus, and long flexors of the great and little toes.  Slight disability of the plantar muscles of Muscle Group X warrants a noncompensable (i.e., 0 percent) rating; moderate muscle disability of the plantar muscles of Muscle Group X warrants a 10 percent rating; moderately severe muscle disability of the plantar muscle of Muscle Group X warrants a 20 percent rating; and severe muscle disability warrants a 30 percent rating.  The muscles of the dorsal aspect of the foot consist of (1) the extensor hallucis brevis and (2) the extensor digitorium brevis. Other important dorsal structures are the cruciate, crural, deltoid, and other ligaments, as well as the tendons of long extensors of the toes and peronei muscles.  Slight disability of the dorsal muscles of Muscle Group X warrants a noncompensable (i.e., 0 percent) rating; moderate muscle disability as well as moderately severe muscle disability of the dorsal muscles of Muscle Group X warrants a 10 percent rating; and severe muscle disability warrants a 20 percent rating.

The Veteran was afforded a VA examination in January 2009.  She reported that when she did not wear her orthotics she experienced pain and that her feet were worse with standing and walking.  She had developed swelling on the top of her feet, toes, and ball of her feet while standing.  She noted that her current symptoms were pain with her first steps every morning in the plantar region and swelling at the end of the day, fatigue after increased rapid walking, lack of endurance, color change throughout the day, but no weakness or giving way.  Her current treatment included orthotics, elevation, and occasional ibuprofen.  It was noted that her left foot was less severe than her right foot.  Upon examination her right foot exhibited tenderness to the plantar region of the first metatarsophalangeal (MTP) joint and second MTP joint, no pain caused by plantar fascia.  There was a callus on the fifth proximal interphalangeal (PIP) joint.  Toes on the right foot exhibited a normal range of motion.  The Veteran did not exhibit hammer toes, hallux valgus or rigidus, pes cavus, malunion or nonunion of tarsal bones, or atrophy of the foot.  There was pes planus present, with decreased arch on weight-bearing.  There was no additional functional limitation of the foot upon repetitive motion.  

The Veteran was afforded another examination in May 2010.  The Veteran reported pain on the bottom of her feet and lack of endurance while standing and walking bilaterally.  She also complained of swelling and weakness while standing and walking in her right foot.  She did not report flare-ups, but noted that she was only able to stand for 15-30 minutes and could walk more than a quarter of a mile, but not a full mile.  She reported wearing corrective shoes.  Upon examination there was no evidence of painful motion, tenderness, or instability, bilaterally.  There was evidence of abnormal weight bearing, bilaterally.  There was no evidence of hammertoes, hallux valgus, hallux rigidus, pes cavus, or malunion or nonunion of the tarsal or metatarsal bones, bilaterally.  There was evidence of flat foot with inward bowing of Achilles alignment on weight bearing and nonweight bearing, bilaterally.  There was no arch present on weight bearing in either foot.  In addition, the right foot presented with swelling.  The Veteran had an antalgic gait.  X-rays associated with the examination revealed an unremarkable left foot and mild degenerative changes at the MTP joint of the great toe, calcification of the Achilles insertion on the right foot.  The Veteran was diagnosed with bilateral plantar fasciitis.  It was noted that her bilateral foot disability had a moderate effect on chores and exercise and prevented sports and recreation.  

A February 2011 podiatry clinic treatment note diagnosed the Veteran with bilateral pes planus, bilateral plantar fasciitis, bilateral equines, and hammertoes.  The treatment report also noted that the Veteran was unable to wear the dress shoes required for work.  In association with the February 2011 examination, a vascular examination was performed and normal palpation was found.  The neurological examination revealed normal sensation.  Normal skin texture and bilateral turgor were found the dermatological examination.  Examination of the musculoskeletal system revealed pain on palpation to plantar medial tubercle, bilaterally, flat feet bilaterally, muscle strength 5/5 bilaterally.  There was no pain on joint range of motion, even with resistance; however, tight calf muscles and contracted toes were noted bilaterally.

The Veteran was afforded another VA examination in July 2011.  After noting the Veteran's extensive medical history with regard to his feet, the examiner noted that the Veteran reported that her feet hurt when she awakes in the morning.  The balls of her feet, on her right more than her left, hurt when she stands from a seated position.  When walking the balls of her feet as well as the arches of her feet are painful.  The pain prevents her from moving quickly or exercising.  She reported swelling on the top and sides of her feet.  The bottoms of her feet burn after standing.  She reported wearing custom shoes and inserts.  The examiner noted that the Veteran's feet affect her daily living in that she can only stand for 10-15 minutes limiting her ability to exercise and do household chores.  There was no evidence of flare-ups, inflammatory arthritis, or gait abnormality.  The Veteran was limited from lifting over 50 pounds, sitting for more than 2 hours, standing for more than 10-15 minutes, and walking over 15-20 minutes.  Upon examination it was noted that the Veteran had no abnormal gait, edema, instability, weakness, skin or vascular abnormality, or scars, bilaterally.  The Veteran did have painful motion and tenderness with flexion of the foot at the MTP joint on the right foot.  There was normal range of motion in the toes and no evidence of abnormal weight bearing, hammer toes, hallux valgus, hallux rigidus, pes cavus, malunion or nonunion of tarsal bones, or muscle atrophy of the foot, bilaterally.  There was evidence of pes planus, bilaterally, with 5 degrees slight valgus on nonweight bearing Achilles alignment and no arch present on weight bearing.  There were no additional functional limitations, to include additional loss of range of motion during flare-ups or secondary to repetitive use, painful motion, weakness, or excessive fatigability.  There was evidence of a lack of endurance.  X-rays associated with the examination revealed small plantar calcaneal spurs on the left foot and minimal degenerative changes on the right foot.  The Veteran was diagnosed with bilateral plantar fasciitis and valgus deformity with pes planus.

The Board acknowledges the Veteran's statements regarding the severity of her bilateral plantar fasciitis (also diagnosed as valgus deformity with pes planus).  Specifically her contentions that her foot is far more disabled than her currently assigned ratings indicate.  The Board further notes that the Veteran is competent to attest to the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006).  However, the Board places significantly more weight on the objective clinical findings reported on examination than the Veteran's statements as the Veteran is not shown to have the requisite training to determine the severity level of her service-connected bilateral plantar fasciitis (also diagnosed as valgus deformity with pes planus).  See Smith v. Derwinski, 1 Vet. App. 235, 237 (1991) (determining the credibility of evidence is a function for the Board).  Furthermore, the opinions and observations of the Veteran cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.71a with respect to determining the severity of her service-connected bilateral plantar fasciitis (also diagnosed as valgus deformity with pes planus).  See Moray v. Brown, 2 Vet. App. 211, 214 (1993); 38 C.F.R. § 3.159(a)(1) and (2) (2012).

With consideration of the above, the Board finds that the Veteran is not entitled to a higher rating than the currently assigned 10 percent for her bilateral plantar fasciitis (also diagnosed as valgus deformity with pes planus).  In this regard the Board notes that the Veteran's bilateral foot disability is not noted to be severe and does not exhibit objective evidence of marked deformity, pain on manipulation, or characteristic callosities.  There is evidence that the Veteran's right foot presented with swelling.  She also was noted to have a callus on the fifth PIP joint on her right foot.  However, there was no indication that her right foot exhibited the criteria necessary to be assigned a higher 20 percent rating for unilateral severe flat foot.  One callus on the toe does not approximate "characteristic callosities" as there were not multiple calluses.  The Veteran's bilateral plantar fasciitis (also diagnosed as valgus deformity with pes planus) presented consistently with pain, tenderness, lack of endurance, and abnormal weight bearing with slight inward bowing on nonweight bearing Achilles alignment and no arch on weight bearing, indicative of a 10 percent rating for moderate pes planus.  As such, the Board finds that a higher initial rating for bilateral plantar fasciitis (also diagnosed as valgus deformity with pes planus) is not warranted.  38 C.F.R. § 4.71a, Diagnostic Code 5276.

While the Veteran has pain in the plantar aspect of her feet, her symptomatology is more appropriately addressed by Diagnostic Code 5276.  The Board notes, under 38 C.F.R. § 4.56 (c), governing the evaluation of muscle disabilities, for VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement.  As noted above, even though the Veteran has pain in the plantar aspect of her feet and lack of endurance, her symptomatology is more appropriately addressed by Diagnostic Code 5276.  The assignment of a particular DC is "completely dependent on the facts of a particular case."  Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and demonstrated symptomatology; any change in a diagnostic code by a VA adjudicator must be specifically explained.  See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).  Even if her symptoms were more consistent with a muscle injury, they would not be more than moderate under 38 C.F.R. § 4.56(d)(2).  Her strength was 5 out of 5 in February 2011.  Although she had lack of endurance, as mentioned, there was no indication of muscle loss.

The Board has also considered whether the Veteran would be entitled to a higher evaluation under other diagnostic criteria related to the foot.  In this regard, the Board notes initially, that Diagnostic Codes 5277, 5278, 5279, 5280, 5281, 5282, and 5283 are not for application in the instant case because there is no evidence of weak foot (Diagnostic Code 5277), pes cavus, claw foot (Diagnostic Code 5278), metatarsalgia, anterior/Morton's disease (Diagnostic Code 4279), hallux valgus (Diagnostic Code 5280), hallux rigidus (Diagnostic Code 5281), hammer toe (Diagnostic Code 5282), or malunion or nonunion of tarsal or metatarsal bones (Diagnostic Code 5283).  

With respect to other foot injuries under Diagnostic Code 5284, it was noted on examination in May 2010 that the Veteran's bilateral foot disability had a moderate effect on her daily activities.  Other findings on examination reports also do not demonstrate any more than moderate impairment, as described above.  Moderate impairment in her feet would not warrant a rating higher than 10 percent under Diagnostic Code 5284.

In evaluating the Veteran's claims for higher rating, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).

According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards.  See 38 C.F.R. § 3.321(b)(1).  An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards.  See Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating.  First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected bilateral plantar fasciitis (also diagnosed as valgus deformity with pes planus) is inadequate.  A comparison between the level of severity and symptomatology of the Veteran's service-connected disability, with the established criteria found in the rating schedule for that disability shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology, as discussed above.  The Veteran's bilateral foot disability is manifested by pain, tenderness, lack of endurance and abnormal weight bearing with inward bowing of Achilles alignment on nonweight bearing and loss of arch on weight bearing indicating moderate pes planus.  This impairment is contemplated by the 10 percent rating assigned under Diagnostic Codes 5276-5310.

The Board further observes that, even if the available schedular evaluation for the disability is inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms."  The record does not show that the Veteran has required frequent hospitalizations for her disability.  There is no persuasive evidence in the record to indicate that the service-connected disability on appeal would cause any impairment with employment over and above that which is already contemplated in the assigned schedular rating.  The Veteran reportedly could not stand for more than 10 to 15 minutes, but worked at a bank and was found to have no occupational impairment as a result of her feet.  She also reported no time lost from work because of her feet in July 2011.  The Board therefore has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted.

Further, 38 C.F.R. § 4.1 specifically sets out that "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability."  Factors such as requiring periodic medical attention are clearly contemplated in the Schedule and provided for in the evaluations assigned herein.  What the evidence does not demonstrate in this case is that the manifestations of the Veteran's service-connected disability have resulted in unusual disability or impairment that has rendered the criteria and/or degrees of disabilities contemplated in the Schedule impractical or inadequate.  Accordingly, consideration of 38 C.F.R. § 3.321(b)(1) is not warranted in this case.

An inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) also has been considered; but the record does not show the Veteran has been rendered unemployable as a result of her bilateral foot disability.  Therefore, any inferred TDIU claim is inapplicable in this case.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, benefit of the doubt shall be given to the claimant.  38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  In this instance, the benefit of the doubt doctrine, however, is not applicable with regard to the Veteran's claim for bilateral plantar fasciitis (also diagnosed as valgus deformity with pes planus) at any time during the appeal period as the preponderance of the evidence is against a rating in excess of that currently assigned.


ORDER

An increased rating, in excess of 10 percent, for bilateral plantar fasciitis (also diagnosed as valgus deformity with pes planus) is denied.



____________________________________________
SARAH B. RICHMOND
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs